Selection criteria for employees on parental leave

It is one of the perennial employment law myths that people on parental leave cannot be made redundant. This is not true - though, of course, correct procedures have to be followed, the redundancy must be genuine, and pregnancy or maternity leave cannot be the basis for being made redundant.

Some employers also get nervous about redundancy selection criteria for employees on parental leave. But a new ruling from the Court of Justice of the European Union has clarified how such employees should be dealt with.

The Court ruled that a firm had discriminated against an employee when it used different selection criteria for her from her colleagues who were not on parental leave. The colleagues were assessed according to the most recent performance evaluation, while hers, undertaken before her leave began 18 months previously, contained different criteria.

In short, the ruling means that an employer may pool employees on maternity or parental leave with other employees, and can apply criteria according to their performance before they went on leave. But the employer must use the same redundancy selection criteria for all the employees in the pool, including those who have not been on leave.